The Department of Labor (DOL) has published a notice of proposed rulemaking (NPRM) to revise how prevailing wage levels are calculated for the H-1B, H-1B1, E-3, and PERM employment based non-immigrant and immigrant visa programs.

The March 27, 2026, proposal seeks to increase the four-tiered prevailing wage structure for these visa programs by aligning them between the 34th to 88th percentiles of the Occupational Employment and Wage Statistics (OEWS) wage survey administrated by the DOL’s Bureau of Labor Statistics (BLS), up from the current four-tiered prevailing wage structure for these visa programs between the 17th and 67th percentile of the OEWS wage survey data.

Overview

Current DOL regulations use a four-tier prevailing wage system based on the BLS OEWS survey methodology.

The NPRM would raise all four prevailing wage levels within the OEWS distribution:

  • Level I – from the 17th to the 34th percentile
  • Level II – from the 34th to the 52nd percentile
  • Level III – from the 50th to the 70th percentile
  • Level IV – from the 67th to the 88th percentile

The revised wage levels would apply equally to both temporary (H-1B, H-1B1, E-3) and permanent (PERM, including EB-2 and EB-3) employment-based visa programs by amending PERM regulations and Labor Condition Applications regulations. The revised methodology and corresponding prevailing wage levels would be prospective, applying only to:

  • Prevailing wage requests pending on the effective date
  • New LCAs or PWD requests filed on or after the effective date

If the rule is adopted in its current form, the proposed changes would codify the new four-tier wage structure in the regulations, specify each level’s wage percentile, confirm the BLS OEWS data as the primary source, remove outdated references to State Workforce Agencies, and require annual wage data updates on the OFLC website. The DOL would also keep the current option to use private wage surveys in certain cases.

NPRM’s Rationale

The NPRM cites to Presidential Proclamation No. 10973, “Restriction on Entry of Certain Nonimmigrant Workers,” 90 Fed. Reg. 46027 (Sept. 19, 2025), directing the secretary of labor to initiate rulemaking to revise prevailing wage levels under the H-1B visa program. DOL asserts that the current methodology for setting prevailing wage levels does not appropriately account for relevant statutory factors, including experience, education, and level of supervision required for a particular role or occupation. It also states that the current methodology and structure undermines the DOL’s statutory responsibility under the Immigration and Nationality Act (INA) to ensure that employment of foreign nationals does not impose adverse effects on the wages and working conditions of comparable U.S. workers by allowing employers to pay foreign nationals “significantly less” than what similarly qualified U.S. workers earn for the same jobs in the same area of intended employment.

Although DOL expects the rule to result in billions of dollars in annual wage transfers from employers to workers over 10 years, it states that direct compliance costs will be minimal aside from familiarization expenses.

Potential Impact on H-1B, H-1B1, E-3 Non-Immigrant Visa Filings

If implemented, the rule will likely increase the minimum wage requirements for new LCAs based on OEWS data. The DOL estimates average wages will rise by about $14,000 per worker annually, with even larger increases for entry-level and mid-level positions.

Potential Impact on PERM (EB-2 and EB-3) Immigrant Visa Sponsorship

Higher prevailing wages during recruitment may affect labor market test results, require higher wages on ETA 9089 applications, and increase long-term green card costs for sponsored employees.

Employer Action Items

The NPRM invites comments on the proposed rule on wage levels, alternative methods, and concerns about reliance by May 26, 2026; it is especially interested in whether the proposed methodology “appropriately accounts for education, experience, and responsibility levels” required under the applicable provisions of the INA.

Employers should consider reviewing their impacted nonimmigrant and PERM-based immigrant visa cases to assess whether roles would remain cost-effective to sponsor, how wage increases may affect internal pay structures, potential impacts on U.S. worker compensation, and whether to adjust the timing of upcoming nonimmigrant or PERM-based filings impacted by the proposed rule.

We will monitor the rulemaking process and provide updates.